🚀 go-pugleaf

justsayknow1@hotmail.com (Commonsense) wrote in message news:<b63b43e.0302121201.591220c0@posting.google.com>...
> amp:
> 
> One thing you aren't doing is looking at this thing in context. 
> Voters in California passed Prop 215 back in 1996.  The legislature
> didn't do this and the state government, by and large, has stayed far
> away from it, not further regulating or clarifying the laws.  The
> higher courts there have only recently gotten involved to any extent
> and have in fact it appears ruled that only strictly defined primary
> caregivers are to be growing marijuana and it looks like they have
> finally closed any loopholes which may have existed for the
> cooperatives. See PEOPLE v. GALAMBOS, C032873, (Cal.App.4th 2002)(In
> this case a conviction of a man growing purportedly to supply a
> medical marijuana cooperative was affirmed on December 26, 2002)
> 
> But in the earlier days since Prop 215 came into effect, medical
> marijuana has been a free-for-all.  The State had a hands off
> approach.  They stayed far away from it and let counties and cities
> set up their own programs.  Many of these cooperatives or "medical
> marijuana clubs" apparently operated with no overt approval of the
> local authorities, although one has to wonder because no one seemed to
> try to shut these down.  In some places however, local authorities
> have really gotten involved in these cases and there can be no denying
> that the locals were actually allowing if not cooperating with large
> scale medical marijuana growing and distributing operations.
> 
> In the Rosenthal case, it appears at least from the news reports, that
> the city not only allowed Rosenthal to grow pot, they actually
> purported to give him some authority to do so. This may not have been
> entirely legal under the statute and in fact, under present California
> court interpretation of the statute, would probably not be legal.
> 
> But even if the parties involved may not have been following the
> letter of the law, Rosenthal had a very strong argument that he was
> operating with something like implied permission from the state. 
> Unquestionably, the state has allowed these local governments to set
> up and run their own programs.  Local District Attorneys, who actually
> represent the state of California, have actually been instrumental in
> setting many of these programs up, as have local law enforcement.  If
> the state is going to allow its agents to give approval for these
> local programs, the State should be estopped from prosecuting persons
> acting with approval from the state. (note, the fellow in PEOPLE v.
> GALAMBOS had no such approval, only a contract with a medical
> marijuana cooperative)  It shouldn't matter whether a local DA
> actually actively participated in setting up the program.  If he
> allowed it to go on under his nose without doing anything about it,
> gave any signs that he approved of it, he should be barred from
> prosecuting without at least giving fair warning and the opportunity
> to cease the proscribed conduct.
> 
> If the news reports accurately portray the relationship between Ed
> Rosenthal, local law enforcement, city officials and so on are
> correct, I think he would have been able to have escaped prosecution
> from the State even if they did try.  I think he would have had a good
> argument that he did have a form of permission from the state and
> certainly from the locals.  Even if he was not in compliance with the
> letter of the law, he was acting under color of law and would have had
> several defenses available to him.
> 
> Laws are often not cut and dried, black and white. Reasonable minds
> often differ as to what the black letter law in a certain area
> actually is.  And you have to wonder if someone is acting with
> apparent authority from the State if the State could have then
> prosecuted him for breaking the laws it allowed him to break.
> 
> I don't know if California could have successfully prosecuted
> Rosenthal or not. If the circumstances were as described by the news
> outlets, I doubt they could have.  I suspect he was acting within the
> law, albeit in the grey, fringe areas of it.
> 
> But we are losing sight of the forest for the trees.  The real
> questions coming from all of this are questions like whether
> California, or any other state, should be able to have its own medical
> marijuana laws, especially in the context of the 10th Amendment
> argument?  Should the federal government reschedule marijuana?  Should
> jurors be informed of the principle of jury nullification?  Is it a
> good idea for our federal government come in and subvert the will of
> the people in a state and trample on that states sovereignty enforcing
> laws against someone who is acting apparently with the approval of
> that state and her citizens?  These are the important questions coming
> out of this cases that people will be arguing about many years from
> now. Whether Ed Rosenthal was technically in compliance with Prop 215
> as written and whether medical marijuana is good medicine and so on
> are just little side issues and footnotes in the grand scheme of
> things.

Actually, upon further inspection into the laws it does not appear
that the loopholes have been closed for cooperatives.  This most
recent case, Galambos, dealt with a supplier who grew pot and then
contracted to sell it to a cooperative.  He was not a "primary
caregiver" under the law.  A primary caregiver is the "the individual
designated by the person exempted under this section who has
consistently assumed responsibility for the housing, health, or safety
of that person." The word individual does not necessarily prclude an
intution or from being primary care giver and nothing in the law
prohibits a primary care giver from providing marijuana to more that
one person. Additionally, a primary caregiver may seek reimbursement
for his services.  See PEOPLE EX REL. LUNGREN v. PERON, 59 Cal.App.4th
1383; 70 Cal.Rptr.2d 20 (1997).

While I don't know exactly how they plan to keep these cooperatives
within California law, the work still goes on in that regard. Limiting
the plants to below a hundred is to keep them off the federal radar
screen.  They figure the lower the number of plants the lower the
possible federal sentence and the lower the likelihood they'll be
busted.

Now, I don't know all of California's laws and I don't have an
enormous amount of time to research them.  Their medical marijuana
laws seem to be up in the air at the moment.  The courts are limiting
them in scope somewhat.  It does appear that they do not want huge
commercial enterprises, but their Attorney General is still apparently
encouraging local communities to develope their own guidelines. See
http://www.sannet.gov/communityservices/medicalmarijuana/pdf/psns1002.pdf
;
and, http://www.canorml.org/prop/lockyerpolicy.html

With a little digging, you will note that Attorney General has been a
strong supporter of Prop 215 and has written former DEA head Asa
Hutchinson to ask that the prosecutions stop, and even specifically
complained about a DEA raid on the Wo/Men&#8217;s Alliance for Medical
Marijuana, medical marijuana cooperative.
http://www.cannabisnews.com/news/14/thread14330.shtml .  You'll find
that many local DEA's are outspoken proponents of Prop 215 as well,
most notably the DEA in San Fransisco who stood behind Rosenthal when
he made his statement on the courthouse steps after court.

I'm not making all this up.  If I had time, I'd do all the research
and write you a standard legal memo citing California law and supply
you a zillion more news articles.  It's really interesting stuff to
me. But, really, I don't have time.  Call it a lame excuse if you want
to but I'm running a business here.